Kenya: Transporter on trial over Cess in Mombasa County

The Kenya Transporters Association (KTA) will file lawsuits to prevent Mombasa County from levying taxes on roads built and maintained by the national government.

KTA is concerned that, despite a Supreme Court ruling banning tax on non-provision of services, the government of Governor Hassan Joho is still levying taxes on vehicles transporting goods into the district.

KTA chairman Newton Wang’oo accused the county of not complying with court orders and pointed out that the imposition of deregistration as a condition for crossing the border had been declared unconstitutional.

“In total and blatant disregard for Supreme Court orders, the county continues to levy charges when the county fails to provide services on roads maintained and classified by the national government,” Wang’oo said.

To make the situation worse, the county has increased fee-based taxes in some cases by more than 500 percent in its Finance Act 2021.

Mr. Wang’oo said trucks carrying alcohol charge Sh10,000 above Sh2,000.

“We’re going to court to stop this. There is nothing we can do but appeal. We are still consulting with our lawyers, ”he said.

KTA has also accused Mr Joho of waiving the levies on Miraa vans entering the county, saying the same should be done for vans carrying other goods.

However, Mr. Wang’oo said that in line with the Supreme Court ruling, Miraa vans should not make any payments in the first place.

“The practice of campaigning public statements by politicians being stronger than a verdict of five Supreme Court judges is a blatant mockery of the judiciary,” he said.

Shippers now want Mombasa County to be prevented from continuing the illegality and what they termed the institutionalization of impunity.

“We urge our national and county governments to respect court orders and the judiciary in order to build and strengthen trust in business and Kenyans at large,” he said.

In a July this year ruling, the Supreme Court said the counties do not have the power to charge fees for services they do not provide.

The ruling by Judges Philomena Mwilu, Njoki Ndung’u, Smokin Wanjala, Mohamed Ibrahim and Isaac Lenaola meant that transport companies should not be charged for using roads built and managed by the national government.

The judges called unconstitutional all fees charged by the counties for services they do not provide, adding that they should only collect what belongs to them.

“While a county may levy fees, it must do so in return for a grant. In other words, a county is not allowed to levy a levy, levy or tax if it doesn’t offer something in return,” the judges said.

The ruling followed a petition from Base Titanium Ltd to have each of its trucks entering Mombasa County scrapped, arguing that it was unconstitutional.

In that case, the Supreme Court found that Mr Joho’s administration illegally collected taxes from the company’s trucks every time the vehicles transported minerals to the port of Mombasa.

However, transport companies still benefit from this scheme as they still pay to use the national government managed roads. But they have vowed to go to court to obtain an order preventing the district from collecting what they consider illegal.

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